International Crimes Committed on the Basis of Sexual Orientation: A Lack of Protection in the Rome Statute?

• Author: Cécile Genoud
• Position: BA in International Relations (UNIGE), LLM in International Criminal Law (NUIG), MA of Swiss Law (UNINE, Candidate). Many thanks to Dr Shane Darcy for his comments on an earlier version, and to David Andrew Clark for his thorough re-reading of this article
• Pages: 1-23

(2018) 17 COLR 1

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INTERNATIONAL CRIMES COMMITTED ON THE BASIS OF SEXUAL

ORIENTATION: A LACK OF PROTECTION IN THE ROME STATUTE?

Cécile Genoud*

A INTRODUCTION

Over the past years, Islamic State fighters killed and raped people, accusing them of being

homosexuals, regardless if they were or not.

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The Coalition for the International Criminal

Court recently shared an article stating that gender-based persecutions should be more broadly

prosecutable, including crimes committed on the basis of sexual orientation.

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So how does the

applicable international criminal law today deal with the issue of crimes committed on the

basis of sexual orientation?

The Rome Statute, establishing the International Criminal Court, defines the worst

international crimes and sets out their prohibition.

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Some of these crimes have been defined in

a clearer manner than others, and as a matter of fact, international crimes committed on the

basis of sexual orientation are not described in any of the crimes of the Rome Statute. This is

the result of conscious and unconscious political and legal reasoning over the years. However,

two crimes could potentially provide special protection to people targeted because of their

sexual orientation since they include a discriminatory intent, requiring the targeting of a group.

These are the crime of genocide (Article 6 of the Rome Statute) and the crime against humanity

of persecution (Articles 7(1)(h) and 7(2)(g) of the Rome Statute). Both crimes include a special

protection for people targeted because of their belonging to a specific category of persons.

* BA in International Relations (UNIGE), LLM in International Criminal Law (NUIG), MA of Swiss Law

(UNINE, Candidate). Many thanks to Dr Shane Darcy for his comments on an ear lier version, and to David

Andrew Clark for his thorough re-reading of this article.

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Meagan Barrera, ‘Gender Crimes at the Margins, Including Crimes Against LGBTIQ Persons in Prosecutions

under the Rome Statute’ (Coalition for the International Criminal Court , 12 February 2018)

uding-crimes-against-lgbtiq-

persons-prosecutions-under-rome> accessed 1 March 2018.

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ibid.

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Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187

UNTS 3.

(2018) 17 COLR 2

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First of all, the terms ‘international crimes’ and ‘sexual orientation’ will be defined, in order

to correctly understand their meanings. Secondly, this article will question the eventual

applicability of the crime of genocide to people targeted on the basis of their sexual orientation.

There will be an analysis of the historical development of the definition of genocide in order

to understand the reasons leading to the choice of groups that deserve special protection. Some

domestic legislation will also be presented in order to challenge the universality of this

definition of genocide. Thirdly, this article will analyse the definition of the crime against

humanity of persecution in order to find a potential protection under this article for the people

targeted on the basis of their sexual orientation. This protection could possibly be made under

two different terms: ‘gender’ and ‘other grounds that are universally recognized as

impermissible under international law’. Subsequently, prior to its conclusion, this article will

present an innovative, even if open to criticism, view of the crime against humanity of

persecution in a decision by the Court of the District of Massachusetts.

It is important to keep in mind that this article only discusses the issue of the commission of

international crimes against people because of their sexual orientation, as part of a targeted

group. This does not mean that these people do not benefit, as persons, from an individual

protection in other articles of the Rome Statute.

B DEFINITIONS

I International Crimes

The concept of international crimes can be presented in different ways. It can refer to the

offenses that are prosecuted under the Rome Statute (‘core crimes’) but it can also include

terrorist offences, piracy, slavery or drug trafficking.

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Since this paper focuses on the Rome

Statute, it is necessary to understand the concept of international crimes as defined in that same

document. The four crimes over which the International Criminal Court has jurisdiction appear

in Article 5 of the Rome Statute. It includes the crime of genocide, crimes against humanity,

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Robert Cryer and others, An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge

University Press 2014) 4.